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Commission ((1935) 294 U. S. 532), and Pacific Ins. Co. v. Commission ((1938) 306 U. S. 466). It is not believed that the question of the desirability of the proposed section could be better considered than by an examination of these respective decisions.

In the Bradford case one Clapper had been employed by the defendant electric company in Vermont. The company was a citizen and a resident of Vermont, but had some lines extending into New Hampshire. Clapper was also a resident of Vermont and was employed there as a lineman to perform emergency services both in Vermont and New Hampshire. In the course of his duties he went to New Hampshire to restore some burned-out fuses in defendant's substation and, while so engaged, was killed. The Vermont workmen's compensation law, in effect at the time the contract of employment was entered into in that State, provided that a workman hired within the State should be entitled to compensation pursuant to its provisions, and to the exclusion of all other remedies under the laws of any other State, regardless of whether injury was suffered within or outside Vermont. The New Hampshire employers' liability act provided that it should apply only to employers who had filed a declaration electing to accept the act. But even though the employer had elected to come under this act, the employee, subsequent to the injury might himself elect to sue for damages at common law. The company had filed such a declaration in New Hampshire.

In the present action Clapper's administratix brought suit against the company in New Hampshire, and elected to sue for negligence in accordance with the election allowed by the New Hampshire statute. The defendant company invoked the full faith and credit clause, and set up the defense that the action was barred by the provisions of the Vermont compensation act, since by that act the parties by entering into their contract of employment in Vermont, had accepted the Vermont law as exclusively applicable to injuries of the employee, regardless of whether such injuries were suffered in Vermont or New Hampshire. The case was transferred to the Federal courts and both the district court and the circuit court had held that the action had been properly brought under the laws of New Hampshire. This holding was reversed by the Supreme Court.

The Court, through Justice Brandeis, pointed out first (p. 153) that the Vermont statute clearly would have precluded the bringing of an action in Vermont to enforce the New Hampshire law, but here the question was whether New Hampshire was free to disregard that provision of the Vermont law declaring that the rights created by the latter should be exclusive even where the injuries were suffered in another State. Of course, as the Court pointed out, if the confiict were between the law of New Hampshire and a foreign country, New Hampshire would be entirely free to apply its own law, but on the facts a constitutional question was raised by the full faith and credit clause. There can be no doubt, the Court said, that a State statute is a "public act" within the meaning of that clause.

The plaintiff argued that the full faith and credit clause could not compel New Hampshire to recognize the Vermont statute which the defendant had raised as a defense, since to do so would be to give the Vermont law an extraterritorial effect. The Court, however, rejected this argument and denied that the recognition by New Hampshire of the defense of the Vermont statute would constitute the giving of an extraterritorial effect to the latter, since the present suit, notwihsanding is being auhorized by the New Hampshire statute, was in the nature of a common law tort, while the right created by the Vermont law was purely statutory.

The administratrix next urged that the provision of the Vermont statute forbidding resort to common-law remedies was contrary to the public policy of New Hampshire, and that the full faith and credit clause does not require a State to enforce an act of another State which is contrary to the public policy of the forum. The Court admitted that under the full faith and credit clause "there is room for some plays of conflicting policy," but countered this argument by denying that the Vermont act was contrary to New Hampshire's policy. Apparently, it based this conclusion upon the consideration that ognition of the Vermont law was asked only by way of defense, and affirmative enforcement of the Vermont statute in the New Hampshire courts was not being sought. (p. 160):

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* * * a State may, on occasion, decline to enforce a foreign cause of action. In so doing, it merely denies a remedy, leaving unimpaired the plaintiff's substantive right, so that he is free to enforce it elsewhere. But to refuse

to give effect to a substantive defense under he applicable law of another State, as under the circumstances here presented, subjects the defendant to irremediable liability. This may not be done."

Then the Court applies the theory that as between these two conflicting laws, that of the State having the superior or paramount "interest" in the situation should govern (p. 161):

"The interest of New Hampshire was only casual. Leon Clapper was not a resident there. He was not continuously employed there. So far as appears, he had no dependent there. It is difficult to see how the State's interest would be subserved, under such circumstances, by burdening its courts with this litigation." Justice Stone, concurring in the result on the ground that the New Hampshire courts had not decided that the Vermont law was obnoxious to the public policy of New Hampshire, nevertheless expressed doubt on the question of whether the full faith and credit clause compelled New Hampshire to give effect to the Vermont law by way of defense to the present action. He said (p. 164):

"The interest, which New Hampshire has, in exercising that control, derived from the presence of employer and employee within its borders, and the commission of the tortious act there, is at least as valid as that of Vermont derived from the fact that the status is that of its citizens, and originated when they were in Vermont, before going to New Hampshire. I can find nothing in the history of the full faith and credit clause, or the decisions under it, which lends support to the view that it compels any State to subordinate its domestic policy, with respect to persons and their acts within its borders, to the laws of any other. On the contrary, I think it should be interpreted as leaving the courts of New Hampshire free, in the circumstances now presented either to apply or refuse to apply the law of Vermont, in accordance with their own interpretation of New Hampshire policy and law."

This case, then, appears to hold that the workmen's compensation law in effect at the place of contracting, if by its terms declared to be an exclusive remedy, must by virtue of the full faith and credit clause be recognized as a defense to an action brought under the law of another State in which the employee is injured. In such case, since the law of the State of contracting is invoked only as a defense and not as a basis for affirmative relief, the State of the injury cannot be heard to say that the lex loci contractus is obnoxious to its policy. But these propositions, apparently, must be qualified and held applicable only where the State of contracting has a superior "interest" in the controversy, the determination of such superiority being dependent upon the individual facts of each case and hence not reducible to any generally applicable formula.

The decision in the Alaska Packers' case (294 U. S. 532) does not appear to be in any fundamental respect to be inconsistent with the result of the Bradford decision. There the employee was a citizen of Mexico and a nonresident of California who executed with his employer in California, a written contract of employment. Under this contract the employee agreed to work in Alaska during the salmon canning season, and the employer agreed to transport him to Alaska and back, and upon his return to pay him all accrued wages less advances. Both parties further agreed that compensation for any injuries suffered by the employee in the course of his employment should be subject to the provisions of the Alaska workmen's compensation law.

The California law as construed by the California courts was applicable where the contract of employment was made in California, to all controversies arising out of injuries suffered without the territorial limits of the State, and this regardless of whether the employee was a resident of California at the time the contract was made. The California law also provides that "no contract, rule, or regulation shall exempt the employer from liability for the compensation fixed by this act." The plaintiff was injured in the course of his employment in Alaska. The Alaska law provided that it should be the exclusive remedy for injuries suffered in Alaska. The employee returned to California and brought suit under the California act. The California court held that a conflict existed between the California and the Alaska laws, but decided that neither the Federal due-process nor full faith and credit clauses required it to follow the Alaska law, and accordingly awarded the employee relief under its own statute.

This decision was affirmed by the United States Supreme Court. The Court first denied that the award of the California court was obnoxious to the dueprocess clause, since (p. 541) "while under the due-process clause the power to control the legal consequences of a tortious act committeed elsewhere has been denied, the liability to workmen's compensation is not a tort," but "it is imposed

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as an incident of the employment relationship. * Then the court advances another doctrine, namely, "control over status": "Obviously the power of a State to effect legal consequences is not limited to occurrences within the State if it has control over the status which gives the rise to those consequences." Apparently, objections under the due-process clause cannot be made to a court's refusal to enforce the law of another State with respect to parties over whose "status" the forum has "control"; the forum in such case has power to improve its own liability for an injury outside State borders, and due-process questions can be raised only where the exercise of this power is "so arbitrary or unreasonable as to amount to a denial of due process." Pointing out the hardships which would be imposed upon the employee if he were forced to return to Alaska to sue, after having come back to California to collect his wages under the contract, the Court found that California's enforcement of its own law was not so arbitrary or unreasonable as to amount to a denial of due process.

The Court held further that the provision of the California law declaring that no contract should exempt the employer from the operation of the California law was within the constitutional power of the State to enact, and not obnoxious to due process.

On the full-faith-and-credit point, the Court stated (p. 546) that with respect to a State's duty to enforce the judgments of other States, the mandate of the full-faith-and-credit clause was in some respects limited, and (p. 547) "in the case of statutes, the extrastate effect of which Congress has not prescribed, where the policy of one State statute comes into conflict with that of another, the necessity of some accommodation of the conflicting interests of the two States is still more apparent." "Prima facie," the Court said, "every State is entitled to enforce in its own courts, its own statutes, lawfully enacted," and one who challenges that rigfit under the full-faith-and-credit clause "assumes the burden of showing that of the conflicting interests involved those of the for

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eign State are superior to those of the forum.”

Referring to the Bradford case, the Court said that if there, because of the "superior interest" of Vermont in the "status" of the parties, the Vermont statute was held to override that of New Hampshire (p. 549) "it is hardly to be supposed that the Constitution would require it to be given any less effect in Vermont * *" and so, in the present case, the California law is to be applied in the California courts, undess the employer can show that Alaska has a "superior interest." Moreover, the Court said in the Bradford case "it did not appear that the subordination of the New Hampshire statute to that of Vermont would be obnoxious to the policy of New Hampshire," but, on the other hand, the Supreme Court of California had declared it to be contrary to the policy of the State to give effect to the provisions of the Alaska statutes. The Court concluded that "the interest of Alaska is not shown to be superior to that of California."

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In the third case, Pacific Ins. Co. v. Commissioner ((1938) 306 U. S. 466), the injured employee was a resident of Massachusetts and regularly employed there. He was sent by his employer to the latter's branch factory in California, to act temporarily as a technical adviser. Upon completion of this assignment he expected to return to the employer's Massachusetts place of business, and while in California he remained subject to the general direction and control of the employer's Massachusetts office, from which his compensation was paid. He was injured in California, and he instituted proceedings for compensation under the California workmen's compensation law.

The petitioner, an insurance carrier, was joined in the proceeding. Under the Massachusetts law, the employer was deemed to waive his "right of action at common law or under the law of any other jurisdiction" to recover for personal injuries; that is to say, the employee's right to recover for personal injuries "was restricted to the compensation provided by the Massachusetts act for injuries received in the course of his employment, whether within or without the Commonwealth." The California law by its terms applied where an employee was injured within the State. As has been noted in the discussion of the Alaska Packers' case, it also provided that “no contract, rule, or regulation shall exempt the employer from liability for the compensation fixed by this act."

The petitioner insurance carrier, which had assumed the liability of the employer under the California act, insisted that the Massachusetts act must be given effect and held to be the employee's exclusive remedy under the Bradford Electric Co. decision, and that the employee therefore was not entitled to relief under the California law. The Court, through Justice Stone, said (p. 501):

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the very nature of the Federal union of States precludes resort to the full faith and credit clause as a means for compelling a State to substitute the statutes of other States for its own statutes dealing with a subject matter concerning which it is competent to legislate"; (p. 502): in the case of statutes, the extra-State effect of which Congress has not prescribed, as it may under the constitutional provision the full faith and credit clause does not require one State to substitute for its own statute, applicable to persons and events within it, the conflicting statue of another State Referring to the Alaska Packers' case, the Court said that there "the decision was rested explicitly upon the grounds that the full faith and credit exacted by the statute of one State does not necessarily preclude another State from enforcing in its own courts its own conflicting statute" and in that case "no persuasive reason was shown for denying this right."

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The Court then distinguishes the Bradford Electric case by noting that in that case (p. 504) "the court was careful to point out that there was nothing in the New Hampshire statute, the decisions of its courts, or in the circumstances of the case, to suggest that reliance on the provisions of the Vermont statute, as a defense to the New Hampshire suit, was obnoxious to the policy of New Hampshire." The Court intimated that if the Vermont statute had been shown to be obnoxious to New Hampshire policy the Bradford decision would have gone the other way. In the present case, it was said, the Massachusetts law was obnoxious to the policy of California, not only because there was a conflict between the two, "but the California law in addition provides that 'no contract, rule, or regulation shall exempt the employer from liability for the compensation fixed by this act,' and the Supreme Court of California declared that it would be obnoxious to California policy to apply any law but its own."

It may now be asked on the basis of these decisions, what conflict of laws principles in the workmen's compensation field are dictated by the Federal Constitution? The law in effect where the contract was made cannot be determinative, since while this law was held controlling in the Bradford and Alaska Packers' cases, the law of the forum was held applicable in the Pacific Insurance case. Domicile and residence of the parties may be factors to be considered in some situations but not in others. They were regarded as highly important in the Bradford case, but residence of the employee was considered of no importance in the Alaska Packers' case, and in the Pacific Insurance case these elements were conveniently ignored. The Bradford case indicates that it is of importance to know whether the employee is in the State of injury only casually, as distinguished from being employed there for a longer time. But the Pacific case indicates that this consideration is not to be regarded as significant when in the Court's view of the equities of the situation appears to point to a different result. The precise provisions of the various statues may be held important in determining the conclusion reached. In the Bradford case the Vermont statute excluded any other remedy regardless of whether the employee was injured within or without the State, and the provision of the Massachusetts statute in the Pacific case was precisely to the same effect. But while the Court laid great emphasis on the importance of this provision in the Bradford case, it contented itself in the Pacific case with a bare reference to the same provisions of the Massachusetts statute, once it had discovered that the California court had said that this provision was against California's policy.

In the light of such considerations it is not inappropriate to inquire whether there is any doctrine, test, or formula which is consistently applied in these cases. Apparently there are three such concepts: (1) That State which "controls the status" of the parties, (2) that State having a "superior interest" in the controversy, and (3) a "public policy" existing at the forum to which the foreign law is obnoxious. But these "tags" do little to aid in determining, in advance, what a court will decide. Thus in the Alaska case it was said that California law "controlled the status" of the parties because the contract was made in California. But in the Pacific case the contract had been made in Massachusetts, so that presumably Massachusetts "controlled the status" (although the Court was silent on this point), but the California law was nevertheless applied. "Superior interest" of course is only a label which can be thrown to either side of the scales as occasion demands, and "public policy" is a very vague term.

Suppose an air carrier domiciled in Illinois employs in California a pilot who is to fly a route between Chicago and San Francisco, and the pilot is injured in Iowa. Assume further that the law of each of these States, as applied to

this employment, states in terms that it provides the exclusive remedy for the employee, regardless of whether the injury is suffered within or without the State. Under the doctrines announced in the three cases just discussed, which law would govern? To attempt to extract from these cases any rational principle by which employers could be guided in determining under which law their liability for employee's injuries would be decided, would be baffling.

It should be apparent that there is at present a pressing need in this field for Federal action of the type proposed, in order, as the section says, "to prevent uncertainty and confusion."

II

The next inquiry then, is whether it is within the power of Congress to enact a statute clarifying conflict of laws principles as applied to workmen's compensation laws in their application to employees of air carriers and air con. tractors. There would seem to be little room for doubt that such power exists, and flows from two provisions of the Constitution, namely, the commerce clause and the full faith and credit clause. The commerce clause will first be considered as a constitutional basis for the proposed amendment.

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At the outset of any discussion of the power of Congress under the commerce clause to enact the proposed section, the Second Employers' Liability Act cases ((1912) 223 U. S. 1), deserves careful consideration. This decision upheld the constitutionality of the Second Federal Employers' Liability Act (35 Stat. 65, as amended, 36 Stat. 291), an act fixing the liability for employers engaged in transportation by railroad in interstate commerce for injuries resulting to their employees while the latter were engaged in such commerce.

It was objected first by the railroads that the act was unconstitutional. In answer to this objection the Court, through Justice Van Devanter (p. 47) paraphrased Marshall's famous passage in Gibbons v. Ogden, and stated:

"This power over commerce among the States, so conferred upon Congress, is complete in itself, extends incidentally to every instrument and agent by which such commerce is carried on, may be exerted to its utmost extent over every part of such commerce, and is subject to no limitations save such as are prescribed in the Constitution."

To the argument that Congress, under the commerce clause, could not legislate with respect to employment relationships in the field of railroad transportation the Court replied (p. 48):

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"It does not admit of doubt that * * Congress, in the exertion of its power over interstate commerce, may regulate the relations of common carriers by railroad and their employees

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The Court also rejected the argument of the railroads that Congress had exceeded its powers because of its abrogation of the fellow-servant rule, and the defenses of contributory negligence and assumption of risk.

Of course, the fact that a substantial measure of relief may have been available under a variety of State laws could not affect the power of Congress to supplant those laws by uniform national legislation. As the Court said (p. 51):

"We are not unmindful that that end was being measurably attained through the remedial legislation of the several States, but that legislation has been far from uniform, and it undoubtedly rested with Congress to determine whether a national law, operating uniformly in all the States upon all carriers by railroad engaged in interstate commerce, would better subserve the needs of that commerce."

The Court then stated that these regulations superseded the laws of the States insofar as the latter covered the same field, quoting Marshall's statement in McCulloch v. Maryland that "This great principle is, that the Constitution and the laws made in pursuance thereof are supreme; that they control the constitution and the laws of the respective States, and cannot be controlled by them." "True," the Court said (p. 54), "prior to the present act the laws of the several States were regarded as determinative of the liability of employers engaged in interstate commerce for injuries received by their employees while engaged in such commerce. But that was because Congress, although empowered to regulate that subject, had not acted thereon, and because the subject is one which falls within the police power of the States in the absence of action by Congress." The convention had also been made that the policy of the Federal act was not

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